South Dakota Divorce Law

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

The person filing for a divorce must be a resident of the state and remain a resident until a divorce decree is entered.  An action for divorce may be filed in either the county where the plaintiff or the defendant lives, and there is at least a 60 day waiting period from the time the divorce petition is served and the court hearing or determination of the divorce.

Grounds for Divorce:

The court may order a divorce based on the following grounds:

• Adultery;
• Extreme cruelty;
• Willful desertion;
• Willful neglect;
• Habitual intemperance;
• Conviction of felony;
• Irreconcilable differences.

Legal Separation in South Dakota:

A husband and wife may separate and agree in writing provisions for child support, spousal support, and property division.  A separation may be granted upon the same grounds as required for dissolution.

Mediation in South Carolina:

In any custody or visitation dispute, the court may order mediation to assist the parties in formulating or modifying a plan for custody or visitation.  The court may also request that an investigation be conducted to help the court in making a custody or visitation determination.  The cost of the mediation and/or the investigation shall be allocated between the parties.

Property Distribution:

South Dakota is an equitable distribution state. Marital assets will be distributed in an equitable fashion, regardless of who holds the title.  Fault is not a factor unless it is relevant to the acquisition of the property during the marriage.

The following factors will be considered by the court when making a property award upon divorce:

• the contribution each spouse had to the acquisition of the marital property;
• the value of each spouses separate property;
• the amount of time the spouse have been married;
• the age and health condition of each spouse; the current and future earning capacity of each spouse;
• the value of the property being distribution as well as the income potential of that property.

Alimony/Spousal Support in South Dakota:

Either party may be awarded maintenance based upon the following factors:

• the duration of the marriage;
• the ability of the spouse from whom support is sought to meet his or her needs while meeting those of the spouse seeking support;
• the financial resources of the spouse seeking maintenance, including marital property apportioned to such spouse and such spouse’s ability to meet his or her needs independently;
• the comparative financial resources of the spouses, including their comparative earning abilities in the labor market;
• the age of the spouses;
• the physical and emotional conditions of the spouses;
• the fault of the spouses during the marriage.

Child Custody in South Dakota:

The determination of child custody is based on the best interests of the child in respect to the child’s temporal and mental and moral welfare. If the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining custody. There is no preference towards either gender in determining custody, and fault is not considered relevant unless it relates to the fitness as a parent, such as domestic abuse or assault, or a conviction, excluding vehicular homicide, of a parent for the death of the other parent.

Child Support in South Dakota:

Child support is based on the “Income Shares” model, meaning that the combined monthly net incomes of both parents shall be used in determining the obligation and divided proportionately between the parents based upon their respective net incomes.  The non-custodial parents share determines the level of child support to be awarded, based on the number of children from the marriage.

In South Dakota, the court will consider the following factors when ordering child support:

• Financial resources of parents, including a parent’s assets if the parent’s income is insufficient to cover child support expenses.
• Payments made on current spousal or child support obligations.
• Actual unreimbursed business expenses incurred by a parent.
• Taxes
• Contributions to an IRS retirement plan (not exceeding 10%).
• Agreement made between the parents.
• Education or health care special needs of the child.
• Income of a subsequent spouse (which is only considered if the standard child support calculation creates a financial hardship for the parent).
• Financial obligation to other children.

PREMARITAL AGREEMENT:

Premarital agreements shall be in writing and signed by both parties.  Premarital agreements may include provisions that define the respective property rights of the parties during the marriage, or upon the death of either or both of the parties. The agreement may provide for the disposition of marital property upon a divorce or separation of the parties, but may not adversely affect the right of child support.

Disclaimer: The divorce law information provided is for informational purposes only not for legal advice purposes. This information is general in nature. Each jurisdiction has specific code and court procedures. A local divorce attorney is your best source for how divorce is treated in your jurisdiction. Before making any legal decisions we encourage you to consult with a local attorney…do not make decisions based on general state divorce law.